Pierre v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-60760-CIV-ALTMAN

JOSEPH PIERRE,

Petitioner,

v.

RICKY D. DIXON, SECRETARY,

FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________/

ORDER

Joseph Pierre was convicted in state court of attempting to murder his ex-wife. He’s now filed

a petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging the constitutionality of his

state-court conviction and sentence. See Petition [ECF No. 1]. After careful review, we DENY the

Petition.

THE FACTS

The State of Florida charged Pierre by Information with one count of first-degree attempted

murder (with a firearm). See Information [ECF No. 9-1] at 8. After a state-court jury found Pierre

guilty, see Verdict [ECF No. 9-1] at 10–11, the trial judge sentenced him (on November 4, 2016) to

life in prison, see Judgment and Sentence Order [ECF No. 9-1] at 18–22.

Pierre appealed his conviction and sentence to Florida’s Fourth DCA. See Direct Appeal

Notice of Appeal [ECF No. 9-1] at 27. In that appeal, Pierre—through counsel—pressed two

arguments: (1) that the trial court erred when it allowed the State “to introduce into evidence a multi-

colored ski mask found in [Pierre’s] car that clearly was not the mask used during the shooting”; and

(2) that “[t]he trial court reversibly erred by permitting a car mechanic, Brian Sylvia, to testify regarding

matters outside his expertise . . . . Sylvia should not have been permitted to testify regarding the

composition of the side mirror—which, intrinsically, was a matter of paint and bodyworks.” Direct

Appeal Initial Brief [ECF No. 9-1] at 57.

On May 16, 2018, the Fourth DCA affirmed Pierre’s conviction in a written opinion. See Pierre

v. State, 246 So. 3d 545, 548 (Fla. 4th DCA 2018). Because “most of the issues were not properly

preserved for review,” the Fourth DCA refused to consider many of Pierre’s arguments de novo. Id. at

546. So, for instance, as to Pierre’s first claim—that the trial court erred in admitting the “multi-

colored ski mask”—the Fourth DCA held that, while “reasonable minds may differ as to whether the

second mask was relevant to the issues of the state’s or the defense’s case,” it would “not reach the

merits of whether the probative value of the second mask was substantially outweighed by the danger

of unfair prejudice it imposed because Pierre failed to assert this ground below.” Id. at 547. Likewise,

the court “[did] not reach the merits of Pierre’s unpreserved argument that [Sylvia] was erroneously

allowed to testify to the composition of the side mirror.” Id. at 548. And, the court concluded,

“[n]either the admission of the mask nor the expert testimony—if erroneous—amounts to

fundamental error, as the jury could have found Pierre guilty based on the eyewitness testimony of his

son and ex-wife alone.” Ibid.

On December 5, 2018,1 Pierre filed a pro se Motion for Postconviction Relief in state court

under FLA. R. CRIM. P. 3.850. See Postconviction Motion [ECF No. 9-1] at 149–69. The Postconviction

Motion raised five grounds for relief: (1) that trial counsel was ineffective “for failing to move for [a]

mistrial and object to the prosecution’s failure to turn over a video tape of the entrance of Mayfair

which is a gated community where the attempted murder of [the victim] took place and the video tape

1 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is

delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.

2009). “Absent evidence to the contrary, [courts] assume that a prisoner delivered a filing to prison

authorities on the date that he signed it.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014).

that was withheld was exculpatory to the defense,” id. at 152; (2) that trial counsel was ineffective “for

failing to object to the [trial] court keeping the selected jury after a forty nine (49) day continuance,”

id. at 160; (3) that counsel was ineffective for failing to argue “that the probative value of the admission

of the multi colored ski mask would be outweighed by the danger of unfair prejudice,” id. at 161; (4)

that counsel was ineffective “for failing to renew his objection when Mr. Sylvia testified that the

broken pieces of a side mirror found at [the victim’s] home came from the Defendant’s rented Toyota

Corolla,” id. at 163; and (5) that the cumulative effect of counsel’s errors “deprived [Pierre] of a fair

trial and due process of law,” id. at 167.

The State opposed Pierre’s Postconviction Motion and urged the postconviction court to

summarily deny all five of Pierre’s claims. See Postconviction Response [ECF No. 9-1] at 172–91. The

State reasoned that Pierre “failed to prove deficiency, and [that] he experienced prejudice or detriment

as a result of his attorney’s actions.” Id. at 191. On May 6, 2019, the state postconviction court

“adopt[ed] the reasoning as set forth in the response of the State” and denied the Postconviction

Motion. Order Denying Postconviction Motion [ECF No. 9-1] at 193. Pierre appealed this decision

to the Fourth DCA, see Postconviction Notice of Appeal [ECF No. 9-1] at 196, and argued that the

state postconviction court erred by summarily denying claims one, two, three, and four of the

Postconviction Motion. See Postconviction Initial Brief [ECF No. 9-1] at 229–30. The Fourth DCA

affirmed the state postconviction court in an unwritten opinion. See Pierre v. State, 288 So. 3d 55, 55

(Fla. 4th DCA 2019).

On November 7, 2019, Pierre filed a motion for rehearing in the Fourth DCA, contending

that the court improperly denied claims one and two and, in the alternative, requesting a written

opinion so that he could “petition the Florida Supreme Court for review of the legal issues in question

on this appeal.” Motion for Rehearing [ECF No. 9-1] at 268. On January 13, 2020, the Fourth DCA

denied the motion for rehearing, see Order Denying Motion for Rehearing [ECF No. 9-11] at 282, and

issued its mandate, see Postconviction Mandate [ECF No. 9-1] at 284 (issuing on Feb. 7, 2020).

Proceeding under FLA. R. APP. P. 9.141, Pierre filed a petition for writ of habeas corpus with

the Fourth DCA on January 31, 2020, advancing two claims of ineffective assistance of appellate

counsel. See State Habeas Petition Vol. I [ECF No. 9-1] at 286–300; State Habeas Petition Vol. II

[ECF No. 9-2] at 1-8. First, Pierre blamed his appellate counsel for failing to argue that “the lower

court erred in overruling defense counsel’s objection and motion for mistrial when the trial judge took

the role of the prosecutor and improperly questioned Petitioner while he was testifying in front of the

jury.” State Habeas Petition Vol. I [ECF No. 9-1] at 290. Second, Pierre castigated his appellate counsel

for not objecting to the prosecutor’s “improper arguments,” which “rose to the level of fundamental

error.” Id. at 298. The Fourth DCA summarily denied the petition on March 24, 2020, see Order

Denying State Habeas Petition [ECF No. 9-2] at 10, and Pierre filed this Petition two weeks later (on

April 8, 2020).

While his federal Petition was pending, Pierre returned to the state trial court with a petition

for writ of mandamus. See Petition for Writ of Mandamus [ECF No. 49-1] at 2–7. In that state-court

petition, Pierre requested “copies of the videos of the front gate entrance and exit of the May Fair

Gate Community [sic] and video 2 feet next door to the victim’s house where the crime occurred on

December 22, 2015.” Id. at 3. According to Pierre, the State Attorney’s Office sent him a letter “saying

that the security video surveillance [is] exempt” from disclosure under Florida law. Ibid. In his

mandamus petition, Pierre argued that this letter proved both that the exculpatory video footage exists

and that the State was improperly withholding it. See ibid. (“Petitioner did not commit the crime and

the videos obtained by the lead detective will show that Petitioner was not the perpetrator.”).

In its opposition to this mandamus petition, the State maintained that its custodian of records,

Misty Williams-Bernabe, “discovered a new employee had mistakenly checked the security

video/surveillance exemption box . . . without ordering and searching the file for the requested video,”

then “personally searched [for] the file, but could not locate any video within the box containing the

file or within the file itself” before writing “a letter to Defendant Pierre in which she informed him of

the mistake[.]” Response to Petition for Writ of Mandamus (“Mandamus Response”) [ECF No. 49-

1] at 9–14; see also Affidavit of Custodian of Records [ECF No. 49-1] at 23–24 (attesting that the initial

letter was sent by mistake and denying that the State file included any videos of the shooting). In other

words, the State unambiguously denied that it was in possession of any such video. See Mandamus

Response [ECF No. 49-1] at 13 (“Considering the State corrected its public records response to

Defendant’s request for records to indicate no such record exists within the State’s file, there is no

legal reason for Mandamus to issue.”).

On October 21, 2021, the state trial court denied Pierre’s mandamus petition “for the reasons

put forth in the State’s Response to the Petition for Writ of Mandamus.” Order Denying Petition for

Writ of Mandamus [ECF No. 49-1] at 57. Pierre appealed this denial of his mandamus petition to the

Fourth DCA, see Mandamus Notice of Appeal [ECF No. 49-1] at 59, insisting again that the State

possessed this exculpatory video, despite Ms. Williams’s affidavit to the contrary, see Mandamus Initial

Brief [ECF No. 49-1] at 71 (“The affidavit of the custodian of records is insufficient to establish that

the State does not have the exculpatory video evidence because there is overwhelming evidence . . .

that the video exists and the State has the exculpatory evidence.”). The Fourth DCA affirmed the trial

court’s denial of Pierre’s mandamus petition in an unwritten opinion on June 9, 2022. See Pierre v. State,

2022 WL 2070449, at *1 (Fla. 4th DCA June 9, 2022).

THE LAW

I. The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

AEDPA instructs district courts to deny any claim that was “adjudicated on the merits” in a

state-court proceeding unless that adjudication “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States, or resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S.

86, 97–98 (2011) (summarizing 28 U.S.C. § 2254(d)–(e)). To have “adjudicated [the claim] on the

merits,” the state court need not have issued any kind of formal opinion or even outlined its reasoning.

Id. at 99 (“When a federal claim has been presented to a state court and the state court has denied

relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of

any indication or state-law procedural principles to the contrary.”). Rather, when a state court doesn’t

articulate its reasons for the denial, the federal court must “‘look through’ the unexplained decision to

the last related state-court decision that does provide a rationale” and “then presume that the

unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

“Clearly established Federal law” means “the holdings, as opposed to the dicta, of [the United States

Supreme Court’s] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529

U.S. 362, 412 (2000). To be “contrary to clearly established federal law, the state court must either (1)

apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a

different result from the Supreme Court when faced with materially indistinguishable facts.” Ward v.

Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (cleaned up).

For “a state court’s application of [Supreme Court] precedent” to be “‘unreasonable, the state

court’s decision must have been more than incorrect or erroneous. The state court’s application must

have been objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (cleaned up). “[I]t

is not an unreasonable application of clearly established Federal law for a state court to decline to

apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Richter, 562

U.S. at 101. “And an unreasonable application of those holdings must be objectively unreasonable,

not merely wrong; even clear error will not suffice. To satisfy this high bar, a habeas petitioner is

required to show that the state court’s ruling on the claim being presented in federal court was so

lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Woods v. Donald, 575 U.S. 312, 316 (2015)

(cleaned up).

Section 2254(d) similarly prohibits federal judges from reevaluating a state court’s factual

findings unless those findings were “based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). To establish that a state

court’s factual findings were unreasonable, “the petitioner must rebut ‘the presumption of correctness

[of a state court’s factual findings] by clear and convincing evidence.’” Ward, 592 F.3d at 1155–56

(quoting 28 U.S.C. § 2254(e)(1)).

“AEDPA’s standard is intentionally difficult to meet.” Woods, 575 U.S. at 315 (cleaned up).

When reviewing state criminal convictions on collateral review, “federal judges are required to afford

state courts due respect by overturning their decisions only when there could be no reasonable dispute

that they were wrong. Federal habeas review thus exists as a guard against extreme malfunctions in

the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at

316 (cleaned up).

Even if a petitioner meets AEDPA’s “difficult” standard, he must still show that any

constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). The Brecht harmless-error standard requires habeas petitioners

to prove that they suffered “actual prejudice.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307

(11th Cir. 2012). As the Supreme Court recently explained, while the passage of AEDPA “announced

certain new conditions to [habeas] relief,” it didn’t eliminate Brecht’s actual-prejudice requirement.

Brown v. Davenport, 142 S. Ct. 1510, 1524 (2022). In other words, a habeas petitioner must satisfy Brecht,

even if AEDPA applies. See id. at 1526 (“[O]ur equitable precedents remain applicable ‘whether or

not’ AEDPA applies.” (citing Fry v. Pliler, 551 U.S. 112, 121 (2007)). In short, a “federal court must

deny relief to a state habeas petitioner who fails to satisfy either [Brecht] or AEDPA. But to grant relief,

a court must find that the petition has cleared both tests.” Id. at 1524 (emphasis in original); see also

Mansfield, 679 F.3d at 1307 (“[A] habeas petition cannot be successful unless it satisfies both [AEDPA]

and Brecht.”).

II. AEDPA’s Procedural Requirements

“[A] person in custody pursuant to the judgment of a State court” has one year to file a habeas

petition in federal court. 28 U.S.C. § 2244(d)(1). That one-year period “runs from the latest of” the

following dates:

(A) the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1)(A)–(D). But this limitations defense is waivable. See Paez v. Sec’y, Fla. Dep’t of

Corr., 947 F.3d 649, 655 (11th Cir. 2020) (explaining that the State may express its intent to “waive

the limitations bar”).

Beyond meeting this one-year window, though, federal habeas petitioners must also exhaust

their claims by “properly present[ing] [them] to the state courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 848

(1999) (emphasis in original). Specifically, federal habeas petitioners must “fairly present every issue

raised in [their] federal petition to the state’s highest court, either on direct appeal or on collateral

review.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (cleaned up). “If a petitioner fail[ed] to

‘properly’ present his claim to the state court—by exhausting his claim[ ] and complying with the

applicable state procedure—prior to bringing his federal habeas claim, then [§ 2254] typically bars

[courts] from reviewing the claim.” Id. In other words, where a petitioner has not “properly presented

his claims to the state courts,” the petitioner will have “procedurally defaulted his claims” in federal

court. O’Sullivan, 526 U.S. at 848.

All that said, “[s]tates can waive procedural bar defenses in federal habeas proceedings,

including exhaustion.” Vazquez v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 964, 966 (11th Cir. 2016) (cleaned

up)). But “[a] State shall not be deemed to have waived the exhaustion requirement . . . unless the

State, through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3) (emphasis added); see

also McNair v. Campbell, 416 F.3d 1291, 1304 (11th Cir. 2005) (same).

III. Ineffective Assistance of Counsel

The Sixth Amendment affords a criminal defendant the right to “the Assistance of Counsel

for his defen[s]e.” U.S. CONST. amend. VI. “The benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S.

668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a habeas litigant must

demonstrate “that (1) his counsel’s performance was deficient and ‘fell below an objective standard of

reasonableness,’ and (2) the deficient performance prejudiced his defense.” Raleigh v. Sec’y, Fla. Dep’t of

Corr., 827 F.3d 938, 957 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 687–88). This same standard

applies to alleged errors made by both trial counsel and appellate counsel. See Farina v. Sec’y, Fla. Dep’t

of Corr., 536 F. App’x 966, 979 (11th Cir. 2013) (“A claim of ineffective assistance of appellate counsel

is evaluated under the same standard as for trial counsel.”).

To establish the first prong (deficiency), “a petitioner must [show] that no competent counsel

would have taken the action that his counsel did take[.]” Chandler v. United States, 218 F.3d 1305, 1315

(11th Cir. 2000) (en banc) (emphasis added). So, if “some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at trial[,]” counsel could not have performed

deficiently. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (quoting White v. Singletary, 972 F.2d

1218, 1220 (11th Cir. 1992)).

As for the second prong (prejudice), “a defendant is prejudiced by his counsel’s deficient

performance if ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Porter v. McCollum, 558 U.S. 30, 40 (2009) (quoting

Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. To succeed on this prong, a defendant must

show that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. at 687.

ANALYSIS

Pierre advances six claims of ineffective assistance. See generally Petition at 3–8. In Ground

One, Pierre argues that his trial counsel “was ineffective for failing to object and move for a mistrial .

. . where the prosecutor failed to turn over exculpatory evidence in the form of a video tape[.]” Id. at

3–4. Pierre castigates trial counsel in Ground Two for “failing to object to the Court’s forty-nine [day]

continuance after the jury was selected.” Id. at 4. In Ground Three, he complains that appellate counsel

didn’t “argue on direct appeal that the lower court erred in overruling defense counsel’s objection . . .

concerning the lower court improperly questioning Petitioner.” Id. at 5. Pierre claims in Ground Four

that appellate counsel erred in “failing to argue on direct appeal [that] the prosecutor’s arguments and

misconduct rose to the level of fundamental error.” Id. at 6. Ground Five contends that trial counsel

was ineffective for failing to argue “that the probative value of the admission of a multi colored ski

mask was outweighed by the danger of unfair prejudice[.]” Id. at 7. And, in Ground Six, Pierre says

that his trial counsel performed ineffectively when he failed “to renew his objection to the [trial court]

permitting [Mr. Sylvia] to testify outside his area of expertise[.]” Id. at 8.

The Respondent contests all six claims on the merits. See generally Response to Petition for Writ

of Habeas Corpus (“Response”) [ECF No. 8] at 10–26. At the same time, the Respondent insists that

we don’t need to go that far because (in the Respondent’s view) Pierre’s claims are unexhausted and

should be dismissed. See id. at 6 (“Here, all of Petitioner’s claims are either procedurally barred or

unexhausted.”).2 On this last point, we disagree with the Respondent. So, we reach the merits of

Pierre’s claims and, applying the “difficult” standard of review set out in § 2254(d), we deny all six.

I. Exhaustion

Before reviewing a habeas claim on its merits, we must satisfy ourselves that “the applicant

has exhausted the remedies available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A). The

Eleventh Circuit has clarified that exhaustion “has two essential requirements”: (1) “a federal claim

must be fairly presented to the state courts”; and (2) the petitioner “must take his claim to the state’s

highest court, either on direct appeal or collateral review.” Johnson v. Florida, 32 F.4th 1092, 1096 (11th

Cir. 2022) (cleaned up). The Respondent focuses on the first of these elements—whether Pierre’s

claims are “federal claims” that have been “fairly presented” to the state courts. In a nutshell, the

Respondent believes that Pierre hasn’t “raised a federal issue, or relied on federal law, and as such his

claims are unexhausted for federal review.” Response at 6. In saying so, the Respondent concedes that

all of Pierre’s claims are “couched in terms of ineffective assistance of counsel”—and that they thus

implicate the Sixth Amendment to the U.S. Constitution. Id. at 7. Still, the Respondent maintains that

2 The Respondent concedes that “the instant petition is timely filed pursuant to 28 U.S.C. § 2244(d).”

Response at 4. We’ll accept that waiver and treat the Petition as timely. See Day v. McDonough, 547 U.S.

198, 209–10 (2006) (“[A] district court is not required to doublecheck the State’s math [for timeliness

purposes].”).

Pierre’s invocation of Strickland and the Sixth Amendment is really a red herring and that all of his

claims “are related to matters of state law exclusively[.]” Ibid. In other words, according to the

Respondent, “[n]one of the claims presented have expressly pointed out any federal implication.” Ibid.

The thrust of the Respondent’s argument, then, is that Pierre’s characterization of his Petition

as arising from an “ineffective assistance of counsel” is just a “Trojan horse” he’s cleverly constructed

as a way of circumventing § 2254’s prohibition against our review of state-law claims. Cf. McCullough

v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992) (“A state’s interpretation of its own laws or rules

provides no basis for federal habeas corpus relief, since no question of a constitutional nature is

involved.”). Unfortunately for the Respondent, the Eleventh Circuit has been clear that “the issue of

ineffective assistance—even when based on the failure of counsel to raise a state law claim—is one of

constitutional dimension[.]” Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984). In other words,

even when a habeas petitioner alleges that counsel was ineffective in his handling of a state-law issue, a

federal court may review the state court’s application of the Strickland test. See Pinkney v. Sec’y, DOC,

876 F.3d 1290, 1295 (11th Cir. 2017) (“As a result, when § 2254(d) applies, as it does here, ‘the question

is not whether counsel’s actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.’” (quoting Richter, 562 U.S. at 105)).

What we may not do, however, is second-guess the state court’s resolution of state law. See Will v. Sec’y

for Dep’t of Corr., 278 F. App’x 902, 908 (11th Cir. 2008) (“Although an ineffective-assistance-of-

counsel claim is a federal constitutional claim, which we consider in light of the clearly established rules

of Strickland, when the validity of the claim that counsel failed to assert is clearly a question of state

law, we must defer to the state’s conclusion of its own law.” (emphasis in original & cleaned up)).

To recap, while we retain the power to review the state court’s application of Strickland to the

facts of Pierre’s case, we cannot question its application of state law. See, e.g., McGhee v. Sec’y, Dep’t of

Corr., 2019 WL 3388232, at *5 (M.D. Fla. July 26, 2019) (Hernandez Covington, J.) (rejecting an

ineffective-assistance claim “for not arguing that the trial court erred when it denied a mistrial” since

the state courts concluded that “the basis proposed by McGhee would not have succeeded under

Florida’s mistrial standard”); Midgett v. Sec’y, Dep’t of Corr., 2018 WL 3769864, at *11 (M.D. Fla. Aug.

9, 2018) (Hernandez Covington, J.) (“Midgett has not established an error in the jury instructions to

which counsel should have objected. To the extent the state court’s determination that the

manslaughter instruction was proper involves an application of state law, it must be afforded

deference.”).

As we’ve explained, the Petition raises four claims of ineffective assistance of trial counsel and

two claims of ineffective assistance of appellate counsel—all of which Pierre has exhausted. To exhaust

an ineffective-assistance-of-trial-counsel claim, the petitioner must raise the claim in a state

postconviction motion under FLA. R. CRIM. P. 3.850. See Sullivan v. Sec’y, Fla. Dep’t of Corr., 837 F.3d

1195, 1199 (11th Cir. 2016) (“Florida requires that ineffective assistance of counsel claims generally

be raised on collateral review pursuant to [Rule 3.850].”). And that’s not all: “[E]xhaustion usually

requires not only the filing of a FLA. R. CRIM. P. 3.850 motion, but [also] an appeal from its

denial.” Nieves v. Sec’y, Fla. Dep’t of Corr., 770 F. App’x 520, 521 (11th Cir. 2019) (quoting Leonard v.

Wainwright, 601 F.2d 807, 808 (5th Cir. 1979)). Pierre has done precisely that. See Postconviction

Motion [ECF No. 9-1] at 149–69 (arguing the substance of Grounds One, Two, Five, and Six);

Postconviction Initial Brief [ECF No. 9-1] at 203–56 (appealing the denial of those four trial-counsel

claims).

By contrast, Florida law requires that an ineffective-assistance-of-appellate-counsel claim “be

raised by petition for writ of habeas corpus in the appellate court which considered the appeal.”

Simpson v. State, 617 So. 2d 749, 749 (Fla. 1st DCA 1993); see also FLA. R. APP. P. 9.141(d)(3) (“Petitions

alleging ineffective assistance of appellate counsel shall be filed in the court to which the appeal was

taken.”). If the district court of appeal summarily denies the ineffective-assistance-of-appellate-counsel

claim, then that claim has been fully exhausted for purposes of § 2254, because the habeas petitioner

is then precluded from seeking further review in the Florida Supreme Court. Cf. Tolbert v. Florida, 796

F. App’x 704, 705 n.1 (11th Cir. 2020) (“Because the Fourth District Court of Appeal made its decision

in a per curiam, unwritten affirmance, the Florida Supreme Court lacked discretionary review

jurisdiction.” (citing Wells v. State, 132 So. 3d 1110, 1113 (Fla. 2014))). And that’s exactly what

happened to Pierre’s two appellate-counsel claims. See Order Denying State Habeas Petition [ECF

No. 9-2] at 10 (“ORDERED that the petition alleging ineffective assistance of counsel is denied.”).

Since Pierre has thus exhausted all six of his claims, we’ll consider the merits of each claim in

turn.

II. The Merits

As we’ve said, we must apply § 2254(d)’s heightened standard of review to any claim “that was

adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). And all four of Pierre’s

trial-counsel claims (Grounds One, Two, Five, and Six) plainly fall into this category. It’s true, of

course, that the Fourth DCA only affirmed the trial court’s denial of these claims in an unwritten

opinion. See Pierre v. State, 288 So. 3d 55, 55 (Fla. 4th DCA 2019). Still, the Supreme Court has

instructed us to “look through the unexplained decision to the last related state-court decision that

does provide a relevant rationale[.]” Wilson, 138 S. Ct. at 1192. And, because the state postconviction

court simply “adopt[ed] the reasoning as set forth in the response of the State,” we presume that the

Fourth DCA applied the reasoning in the State’s Postconviction Response when it denied Pierre’s

trial-counsel claims. Order Denying Postconviction Motion [ECF No. 9-1] at 193; see also, e.g., Cardona

v. Dixon, 2022 WL 2158715, at *6 (S.D. Fla. June 14, 2022) (Altman, J.) (“[T]he state postconviction

court adopted the State’s Postconviction Response as [its] findings of facts and conclusions of law.

We thus presume that both the state postconviction court and the Fourth DCA adopted the arguments

the State pressed in those responses.” (cleaned up)).

We’ll also apply § 2254(d)’s standard of review to the appellate-counsel claims (Grounds Three

and Four), albeit for a different reason. Unlike the trial-counsel claims, the only court that adjudicated

Grounds Three and Four was the Fourth DCA—which summarily denied both in a one-sentence

order. See Order Denying State Habeas Petition [ECF No. 9-2] at 10 (“ORDERED that the petition

alleging ineffective assistance of counsel is denied.”). This time, we can’t “look through the

unexplained decision to the last related state-court decision that does provide a relevant rationale,”

Wilson, 138 S. Ct. at 1192, because there is no underlying state-court decision. Fortunately, the Supreme

Court has told us what to do when “a state court’s decision is unaccompanied by an opinion explaining

the reasons relief has been denied”: We presume in that scenario “that the state court adjudicated the

claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”

Richter, 562 U.S. at 98–99.3 We thus “review the record before the [state court] to determine what

arguments or theories supported or, as here, could have supported, the state court’s decision.” Hittson

v. GDCP Warden, 759 F.3d 1210, 1232 (11th Cir. 2014) (cleaned up). When we engage in this inquiry,

the petitioner bears the “burden [ ] to demonstrate that there was no reasonable basis for the decision

of [the state court] to deny his claim.” Tarleton v. Sec’y, Fla. Dep’t of Corr., 5 F.4th 1278, 1291 (11th Cir.

2021). In sum, we apply § 2254(d)’s heightened standard to the appellate-counsel claims and, in doing

3 Neither party suggests that the Fourth DCA denied Pierre’s appellate-counsel claims for some

procedural reason. See generally Petition; Response; Petitioner’s Amended Reply (“Reply”) [ECF No.

18]. And, after our sua sponte review of the state-court record, we agree that the Fourth DCA (very

likely) denied the claims on their merits. Under the Florida Rules of Appellate Procedure, there’s really

only one procedural hurdle an ineffective-assistance-of-appellate-counsel claim must clear: “A petition

alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years

after the judgment and sentence become final on direct review[.]” FLA. R. APP. P. 9.141(d)(5). Pierre

filed his state habeas petition on January 31, 2020, see State Habeas Petition Vol. I [ECF No. 9-1] at

286, which is less than two years after Pierre’s criminal judgment became final (which happened on

June 15, 2018), see Direct Appeal Mandate [ECF No. 9-1] at 134 (issuing on June 15, 2018); see also

Baca v. State, 313 So. 3d 1177, 1180 n.1 (Fla. 1st DCA 2021) (“[T]he judgment and sentence becomes

final once the appellate mandate issues.”). In short, we agree with the parties that no “state-law

procedural principles” prevented the Fourth DCA from adjudicating Pierre’s appellate-counsel claims

on the merits. Richter, 562 U.S. at 99.

so, grant Pierre relief only if he can show that there was no “reasonable basis” for the state court’s

decision.

A. Ground One

We begin with what is (to Pierre) the most important issue in the case: the (allegedly)

exculpatory video the State (supposedly) suppressed.4 According to Pierre, the State has refused to

turn over two exculpatory videos, in direct violation of Brady v. Maryland, 373 U.S. 83 (1963). See

Postconviction Motion [ECF No. 9-1] at 152 (“At the Defendant’s trial it was undisputed that the

prosecution did fail to turn over exculpatory evidence in the form of a video tape from the Mayfair

gated community’s entrance on the date of the crime.”). Pierre blames his trial counsel for not

objecting to this Brady violation as soon as counsel learned of these videos. See Petition at 3–4

(“Counsel was ineffective for failing to object and move for mistrial based on a discovery and/or Brady

violation where the prosecutor failed to turn over exculpatory evidence in the form of a video tape[.]”).

The Respondent has a simple counterargument: The videos Pierre is looking for don’t exist. See

Response at 10 (“[T]here was no recording of the crime and therefore no discovery violation that

could serve as the basis for a mistrial.”).

4 Pierre has been somewhat inconsistent about the number of allegedly exculpatory videos he’s after. In

his Postconviction Motion, he pointed to only one such video: “a video tape of the entrance of the

Mayfair gated community[.]” Postconviction Motion [ECF No. 9-1] at 154. Similarly, in his federal

Petition, Pierre implies that there’s only one video. See Petition at 3–4 (“Counsel was ineffective for

failing to object and move for mistrial based on a discovery and/or Brady violation where the

prosecutor failed to turn over exculpatory evidence in the form of a video tape[.]” (emphasis added)).

In his Reply, though, he refers to a completely different video, one that was supposedly recorded by

“a camera two feet next to the Petitioner’s ex-wife’s house[.]” Reply at 3. And, in his state petition for

a writ of mandamus, he referred to two videos: the video from the Mayfair entrance and the video near

the ex-wife’s house. See Petition for Writ of Mandamus [ECF No. 49-1] at 3 (requesting “copies of

the videos of the front gate entrance and exit of the May Fair Gate Community [sic] and video 2 feet

next door to the victim’s house where the crime occurred on December 22, 2015”). For simplicity’s

sake, we’ll assume that Ground One refers to both a video from the Mayfair entrance and a video from

a camera near the ex-wife’s house.

In Brady, the Supreme Court held that the “suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either to

guilt or to punishment[.]” 373 U.S. at 87. To establish a Brady violation, a petitioner must show three

things: “(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or

because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or

inadvertently; and (3) prejudice must have ensued.” Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1354

(11th Cir. 2004) (citing Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). To prove that counsel was

ineffective for failing to object to an alleged Brady violation, Pierre would have to show that, “had the

evidence been disclosed to the defense, the result of the proceeding would have been different.”

Osborne v. Terry, 466 F.3d 1298, 1308 (11th Cir. 2006).

The state-court record unambiguously resolves this issue because the videos in question either

don’t exist or, if they do, the State (it’s clear) never possessed them. Pierre’s sole basis for supposing

that the videos exist comes from Detective Kenneth Johnson, who (according to Pierre) “testified

during [his] deposition that there was no video of the entrance of the Mayfair gated community, no

relevant videos.” Postconviction Motion [ECF No. 9-1] at 153. During the trial, however, Detective

Johnson testified “that there was videotaped footage of the entrance of the Mayfair gated community.”

Ibid. (emphasis added). Pierre construes Detective Johnson’s trial testimony as an admission, not just

that the video exists, but that it shows someone else entering the Mayfair community. See id. at 154

(“Counsel knew a video tape of the entrance of the Mayfair gate community did exist, that the

prosecution withheld it based on testimony that it was not relevant to the prosecution and counsel

knew the surveillance videos would have identified the shooter and the identification would not have

been the Defendant[.]”).

Viewed in context, though, Detective Johnson was actually saying that, while he’d reviewed

some footage from nearby cameras, none of the videos he’d seen captured anything relevant to the

case. Detective Johnson identified two potentially relevant cameras: the first located “near the gate

device that you have to use to get into the complex”; the second connected to a house that was just

“two feet away” from the crime scene. Trial Tr. [ECF No. 10-1] at 630. But Detective Johnson was

clear that, after watching the footage from both cameras, he decided not to retrieve it. Starting with

the home camera, Detective Johnson concluded that “[it] did not have any information relevant to the

case.” Id. at 631. And the camera from the entrance likewise didn’t capture any footage “that was

deemed relevant by the lead detective.” Ibid. Detective Johnson later clarified what he meant: The

footage wasn’t relevant, he explained, because “[t]here was no video to check hours prior to the crime

scene being shown on the video.” Id. at 636.

This isn’t at all inconsistent with his deposition testimony. To the contrary, at both his

deposition and the trial, Detective Johnson attested that neither camera had stored video footage from

the time of the shooting. See ibid. (“[T]he video I did receive started without [sic] a crime scene person

arriving at the scene. Meaning, this incident occurred hours before that crime scene person arrived,

and the video was not available at that point.”); see also id. at 723 (“[Defense Counsel:] [Detective

Johnson] told me for two pages in [his] depo ‘No video, no video, no video, no relevant video[.]’”).

And there’s no other evidence in the case about what kinds of footage these cameras retained. Since

the only testimony on this issue establishes that the State never retrieved the videos from these

cameras—and given that the footage on these cameras wasn’t relevant to the case in any event—the

State didn’t violate the strictures of Brady by not disclosing those videos. See Stinson v. Sec’y, Dep’t of

Corr., 2013 WL 360323, at *15 (M.D. Fla. Jan. 30, 2013) (Honeywell, J.) (“Petitioner has not pointed

to any evidence that Brady material existed and was not turned over. As a result, Petitioner has no basis

to contend that counsel’s performance was deficient or that he was prejudiced by counsel’s alleged

failure to request Brady material.” (citing Armatullo v. Taylor, 2005 WL 2386093, at *18 (S.D.N.Y. Sept.

28, 2005))). And, it goes without saying, Pierre’s trial counsel cannot be faulted for failing to fight for

videos that didn’t exist.

Still resisting, Pierre has conjured up a conspiracy involving Detective Johnson, the state

prosecutors, the records custodian, and the state court—all of whom (he now says) know that these

exculpatory videos exist and are doing everything in their power to suppress them. See Reply at 2

(“Everything the Respondent said [about Ground One] is false, misleading and improper.”); Reply to

Respondent’s Response to this Court’s July 7, 2022 Order [ECF No. 52] at 5 (“[T]he State Courts

should have granted the Writ of Mandamus for an evidentiary hearing and an in-camera inspection if

the State Courts were not prejudiced.”). But the state courts have twice concluded that the State never

possessed any such videos. See Postconviction Response [ECF No. 9-1] at 178 (“Therefore, as the

record clearly demonstrates, there was no exculpatory evidence on the video because the video only

included events hours after the incident.”); Mandamus Response [ECF No. 49-1] at 11 (“Accordingly,

Ms. Williams ordered and personally searched the file, but could not locate any videos within the box

containing the file or within the file itself.”).5 And, as we’ve explained, “a determination of a factual

issue made by a State court shall be presumed to be correct” unless Pierre can overcome this

presumption with “clear and convincing evidence[.]” 28 U.S.C. § 2254(e)(1). Pierre, of course, has no

evidence—just his speculation about a conspiracy he’s invented by conveniently ignoring most of

what Detective Johnson actually said at trial. Cf. Gordon v. Sec’y, Dep’t of Corr., 2016 WL 1436600, at *9

n.11 (M.D. Fla. Apr. 12, 2016) (Steele, J.) (“Petitioner’s speculation as to what the [missing dash-cam]

video may have shown is not clear and convincing evidence of the sort to overcome the presumption

of correctness afforded a state court’s factual determinations.”).

5 In each of these instances, the state court simply adopted the arguments the State had advanced in

its briefing. See Order Denying Postconviction Motion [ECF No. 9-1] at 193 (“The Court adopts the

reasoning as set forth in the response of the State[.]”); Order Denying Petition for Writ of Mandamus

[ECF No. 49-1] at 57 (“DENIED for the reasons set forth in the State’s Response to the Petition for

Writ of Mandamus.”).

We’d also be remiss not to point out two other crucial flaws in Pierre’s argument. First, Pierre

ignores that his trial counsel deployed the absence of any video evidence as a crucial part of his defense

strategy. During his closing argument, in fact, trial counsel argued that the jury should acquit Pierre

precisely because the lack of any video footage suggested a shoddy investigation—so shoddy, counsel

insisted, as to create a reasonable doubt:

Is it reasonable to assume if the camera is working from 12:15 to 12:45 at night, and

cameras don’t fix themselves, why don’t we have a video from 9:00 to 12:00? . . . Why

is the camera there? For security, to prevent murder. And if a murder happens let’s go

get a photo of the murderer at the front gate. So, this is a lack of evidence, an important

lack of evidence that there is no video. There is no video. How important would that

have been? You don’t have to rely on people at night identifying a person with a mask

on during an emotional violent incident. No, you’d have video, a video of the person

arriving. It would be huge.

Trial Tr. [ECF No. 10-1] at 724–25. Again, we presume that counsel’s strategic decisions at trial are

“reasonable” unless the petitioner can “establish that no competent counsel would have taken the action

that his counsel did take.” Chandler, 218 F.3d at 1315 (emphasis added). Pierre cannot meet this heavy

burden here. Trial counsel’s frontal assault on a gap in the government’s evidence is just the kind of

strategic decision any seasoned lawyer would have made in these circumstances. See, e.g., Stepp v. Jones,

2018 WL 9439863, at *7 (S.D. Fla. Aug. 29, 2018) (Altonaga, J.) (“Petitioner’s counsel’s decision not

to subpoena Petitioner’s phone records was a reasonable trial strategy predicated on the State’s lack

of evidence, and as such cannot support a collateral claim of ineffective assistance.”).

Second, Pierre cannot prove that he was prejudiced by counsel’s “failure” to assert a Brady

challenge. That’s because the video footage—if it did exist—would’ve only further established Pierre’s

guilt. Recall that both Pierre’s ex-wife and his own son identified him, in unambiguous testimony, as

the shooter. See Pierre, 246 So. 3d at 548 (“[T]he jury could have found Pierre guilty based on the

eyewitness testimony of his son and ex-wife alone.”).6 Recall, too, that Pierre was found hours later in

6 We discuss the testimony of Pierre’s son and ex-wife in more detail below. See infra Section II.D.

a rental car that had sustained precisely the same damage the shooter’s car had sustained during the attack.

See id. at 547 (“As Pierre attempted to flee, the son threw a brick at the passenger side of Pierre’s

window, smashing the rearview mirror. Five hours later, Pierre was apprehended in a rental car with

a missing rearview mirror.”). There’s thus no “reasonable probability” that any such camera footage

would have altered the outcome of this case. Ground One, in short, is DENIED.

B. Ground Two

In his second claim, Pierre contends that his trial lawyer “was ineffective for failing to object

to the Court’s forty nine day continuance after the jury was selected.” Petition at 4. Pierre maintains

that counsel should have “object[ed] when the jury returned so that the jury could again be voir dire

to find out whether their answers to the original voir dire were the same and if not motion for a

mistrial.” Ibid. (errors in original); see also Postconviction Motion [ECF No. 9-1] at 158–59 (“Counsel’s

performance was further deficient for failing to object after the jury returned and to again voir dire

the selected jury to find out if the individual juror’s views of the questions they were asked in the

original voir dire were the same.” (errors in original)). The Respondent counters that “there was no

basis for the defense counsel to object to the trial date, and no reason to believe the result would have

been different even if he had,” and adds that Pierre’s theory about the jury’s answers changing over

the break was “based on speculation.” Response at 17. We agree that the state court reasonably applied

Strickland in denying this claim because “[t]here is no reasonable probability the results of the

proceeding would have differed without this break in time from the jury being sworn in to the trial

resuming.” State’s Postconviction Response [ECF No. 9-1] at 185.

The backdrop to this challenge is, admittedly, unusual. The state court opened Pierre’s voir

dire on July 18, 2016. See Trial Tr. [ECF No. 10-1] at 2–3. But, as the judge was questioning a member

of the venire about a preplanned vacation, he made the following statement:

Maybe just today, we may just pick a jury today, because we are not going to conclude

the case tomorrow. Thereafter[,] I’ve got annual leave, and I don’t want to leave you

hanging in the middle of the case. Maybe we will just pick a jury today, and we agree

upon a time in the future to come back, right, that makes a lot more sense.

Id. at 171. Later in the day, the judge informed the parties that “the trial is probably going to last at

least two weeks on August 15. So the earliest, I believe, [we can] reschedule is as far as the 29th of

August, September right. We can talk to the jurors about that.” Id. at 207. The trial judge then decided

that the trial should pick back up on September 6, 2016—the day after Labor Day. See id. at 210–11

(“I think we are looking as far as September 6th.”). The court and the parties then proceeded to select

a jury that would be available on September 6. See id. at 224. After the jurors were sworn—but before

they were discharged—the court instructed them “not [to] communicate with anyone including friends

and family members about this case,” not to “discuss your thoughts about this case or ask for advice

on how to decide this case,” and not to “do any research . . . that may have anything to do with this

case[.]” Id. at 226–27. Before excusing the newly sworn jurors, the trial judge reiterated:

It’s very important that you don’t do any research with respect to any of the

participants in this matter. Don’t discuss it, don’t have any conversations with the

attorneys, the Defendant or any witnesses in the case, and we will see you on Tuesday[,]

September 6th.

Id. at 230–31. The judge then repeated these same instructions to the jury when they returned on

September 6, 2016. See id. at 243–53.

In rejecting the claim Pierre now reasserts in Ground Two, the state court adopted the two

arguments the State advanced in its Postconviction Response. See Order Denying Postconviction

Motion [ECF No. 9-1] at 193 (“The Court adopts the reasoning as set forth in the response of the

State[.]”). First, noting that the trial court properly instructed the jury not to research or discuss the

case—and that Florida law presumes “jurors will follow the jury instructions”—the State argued that

Pierre wasn’t “prejudiced by the break between the swearing in of the jury and the reconvening of the

trial.” State’s Postconviction Response [ECF No. 9-1] at 183. Second, the State pointed out that, under

Florida law, the trial judge may continue a trial “between the jury being sworn and the examination of

witnesses” unless the defendant can establish prejudice. Id. at 184. And, the State said, Pierre hadn’t

shown that he was prejudiced in any way. See id. at 185 (“There is no reasonable probability the results

of the proceeding would have differed without this break in time from the jury being sworn in to the

trial resuming.”).

We cannot second-guess these findings—viz., that Pierre failed to show (1) that the jury

disregarded the court’s instructions or (2) that he was prejudiced by the delay—unless Pierre can parry

them with “clear and convincing” evidence. Ward, 592 F.3d at 1155–56 (quoting 28 U.S.C. §

2254(e)(1)). Again, however, Pierre offers no evidence—let alone “clear and convincing” evidence—

as to either point. He merely speculates that, had his lawyer impelled the judge to re-question the

jurors, some of the jurors’ answers might have changed. See Postconviction Motion [ECF No. 9-1] at

159 (“It is highly likely that during that 49 day continuance that some if not all the jurors read newspaper

articles or watched television news pertaining to the Defendant’s case . . . . Plus the jurors were not

sworn again after a month to see if they would still follow the law.” (emphasis added)). This isn’t

“likely” at all. Florida law, on the contrary, “presumes that the jury followed the trial judge’s

instructions in the absence of evidence to the contrary.” Sutton v. State, 718 So. 2d 215, 216 n.1 (Fla.

1st DCA 1998); see also Lowe v. State, 259 So. 3d 23, 52 (Fla. 2018) (“Moreover, in the absence of

evidence to the contrary, we presume that jurors follow the trial court’s instructions.”). And, as we’ve

shown, the record is clear that the trial judge twice instructed the jurors not to discuss the case with

anyone, not to conduct any research about the case, and not to engage in any way with the facts of

the case. See Trial Tr. [ECF No 10-1] at 226–27, 230–31; cf. Hatton v. Sec’y, Fla. Dep’t of Corr., 2021 WL

4281287, at *4 (11th Cir. Feb. 10, 2021) (rejecting an argument that the jury’s “puzzled looks” indicated

that they ignored the trial court’s instructions). Again, Pierre’s baseless speculation isn’t enough for us

to disregard the state court’s factual findings. See Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.

1985) (“Speculation is insufficient to carry the burden of a habeas corpus petitioner[.]”). Pierre has

thus failed to show that his lawyer was ineffective for failing to object to the judge’s decision not to re-

question the jury. See Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (“A lawyer cannot be deficient for

failing to raise a meritless claim[.]”). And, for similar reasons, he cannot show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694.7

Ground 2 is, therefore, DENIED.

C. Ground Three

Ground Three is the first of Pierre’s two appellate-counsel claims. Here, Pierre says that his

appellate lawyer was ineffective for “failing to argue on direct appeal that the lower court erred in

overruling defense counsel’s objection and motion for mistrial concerning the lower court improperly

questioning Petitioner.” Petition at 5. The claim arises from the following exchange during the State’s

cross-examination of Pierre at trial:

Q: How did the right passenger’s window get broken and smashed?

A: I already told you what I’m going to tell you again.

Q: Did you hear my question?

A: I hear the question. I’m going to tell you.

7 We also reject Pierre’s separate contention that the delay itself was inherently prejudicial. See

Postconviction Motion [ECF No. 9-1] at 160 (“The jury should have never been selected in the first

place knowing that the case would be continued for [49] days before any argument or evidence would

be presented in this case.”). As both the Respondent and the trial court acknowledged, a continuance

during trial “is left to the discretion of the [trial] court[.]” Response at 16 (quoting McDermott v. State,

383 So. 2d 712, 714 (Fla. 3d DCA 1980)); see also State’s Postconviction Response [ECF No. 9-1] at

184 (citing McDermott). And the trial court’s discretion will be disturbed only where the defendant can

establish that the continuance prejudiced him. See McDermott, 383 So. 2d at 714 (“Generally, prejudice

is not presumed but must be demonstrated by the party allegedly aggrieved.”); Compo v. State, 525 So.

2d 505, 506–07 (Fla. 2d DCA 1988) (“Without a showing of prejudice, Compo’s conviction must be

affirmed.”). We refuse to second-guess the state court’s factual determination that the length of the

continuance didn’t prejudice Pierre. Cf. McCullough, 967 F.2d at 535 (“A state’s interpretation of its

own laws or rules provides no basis for federal habeas corpus relief, since no question of a

constitutional nature is involved.”). And, again, Pierre offers no evidence for his position that he was

prejudiced.

Q: Specifically how did the right passenger’s—

[Defense Counsel]: Objection, Judge, argumentative.

[Pierre]: Even the jury knows what I’m talking about. You’[re] trying to confuse me?

[Defense Counsel]: When there is an objection wait for the judge to rule.

The Court: Answer the question. Let the witness answer the question.

[Pierre]: Okay.

The Court: Answer the question.

[Pierre]: No, because I have to take it little bit if you are—

The Court: No, just answer the question. How did the passenger’s window get broken?

Trial Tr. [ECF No. 10-1] at 662–63. Shortly after the trial court ordered Pierre to answer the

prosecutor’s question, the judge intervened again—this time because Pierre apparently tried to answer

a question with a physical demonstration:

Q: Or was the rock thrown from the side of the car, if you can remember?

A: Okay. Let me explain.

Q: Do you understand my question?

The Court: Sir, we don’t want you to demonstrate anything. Just have a seat.

[Pierre]: Let me explain to you.

The Court: We don’t want you to explain. Which rock broke the window?

[Pierre]: Okay. The first one broke the window mirror. No, the first one broke the

windshield.

The Court: The first rock broke the window.

[Pierre]: And the second one—I’m talking about the driver’s side and part of the

mirror.

[Defense Counsel]: Judge, can we approach one minute for an objection?

The Court: Let’s move on. You can raise that matter—

[Pierre]: If they came back to the scene I would not even be here.

The Court: There is no question pending here.

[Pierre]: I know myself.

The Court: Mr. Pierre, there is no question pending. Mr. Newman, please.

Id. at 664–65.

After the testimony concluded, the judge gave defense counsel a chance to re-raise the

objection he’d tried to make during the cross. See id. at 673 (“[The Court:] I want to give you [defense

counsel] the opportunity to raise another matter.”). At this, Pierre’s lawyer moved for a mistrial,

arguing that “the Court jumped in with some questions which, to the defense, sounded to us like [you]

were not believing what the witness was saying, and you were directing cross-examination questions

at him. I think the jury realized that the Court did not believe [Pierre’s] testimony at that time[.]” Ibid.

The trial court denied the mistrial motion, reasoning that “I had one question, it was only to reiterate

questions that [were] asked by the State and not answered. . . . I certainly did not direct the State as to

how they might cross-examine the Defendant, and I certainly didn’t say anything, in my view, which

explicitly indicated that the Defendant’s testimony was unworthy of belief.” Ibid.

In his state habeas petition, Pierre cited Poe v. State, 746 So. 2d 1211 (Fla. 5th DCA 1999), for

his view that the trial court erred by “appear[ing] to take on the role of a prosecutor when questioning

a witness during trial.” State Habeas Petition Vol. I [ECF No. 9-1] at 294. In the Respondent’s view,

this was all much ado about very little. According to the Respondent, Pierre’s appellate counsel was

right not to raise this argument on appeal both because the issue hadn’t been preserved and because

the judge properly intervened “to maintain the integrity of the cross-examination[.]” Response at 21.

Pierre has failed to show that the Fourth DCA had no “reasonable basis” to deny Ground

Three. See Tarleton, 5 F.4th at 1291. Trial judges have the inherent power to manage proceedings in

their courtrooms—a power that allows judges (when necessary) to rebuke parties and their lawyers.

See Liteky v. United States, 510 U.S. 540, 556 (1994) (“A judge’s ordinary efforts at courtroom

administration—even a stern and short-tempered judge’s ordinary efforts at courtroom

administration—remain immune [from challenge].”). And, under Florida law, “it is permissible for a

trial judge to ask questions deemed necessary to clear up uncertainties as to issues in cases that appear

to require it[.]” J.F. v. State, 718 So. 2d 251, 252 (Fla. 4th DCA 1998).

That’s exactly what happened here. The judge interacted with Pierre twice during cross-

examination—both times to direct Pierre to answer the prosecutor’s question. See Trial Tr. [ECF No.

10-1] at 663 (“The Court: No, just answer the question. How did the passenger’s window get

broken?”); id. at 665 (“The Court: We don’t want you to explain. Which rock broke the window?”).

These interventions were plainly appropriate—even in front of the jury. See Ellis v. Henning, 678 So.

2d 825, 827 (Fla. 4th DCA 1996) (“A trial judge’s expression of dissatisfaction with counsel or a client’s

behavior alone does not give rise to a reasonable belief that the trial judge is biased and the client

cannot receive a fair trial.” (citing Oates v. State, 619 So. 2d 23, 25–26 (Fla. 4th DCA 1993))). The judge

never “crossed the line from neutral arbiter to advocate” because he was simply directing Pierre to

answer—in words and not with a physical demonstration—the lawyer’s questions. Sparks v. State, 740

So. 2d 33, 36 (Fla. 1st DCA 1999); cf. id. at 37 (“In this case, the trial court judge crossed the line . . .

by directing the prosecutor’s attention to evidence on the core issue of the credibility of the

defendant.”); Simmons v. State, 803 So. 2d 787, 788–89 (Fla. 1st DCA 2001) (“The trial court overruled

defense counsel’s mischaracterization of evidence objection by saying, ‘[i]t is accurate and dead on

point.’ . . . The comment made by the judge in this case appears to validate the State’s argument, and

therefore, it was error.” (alteration in original)); Chastine v. Broome, 629 So. 2d 293, 294 (Fla. 4th DCA

1993) (holding that a trial judge behaved improperly when she “wrote a note that she ‘passed’ to the

prosecutor which read ‘sometimes it is better not to cross-examine witnesses’”). Since the Fourth

DCA had a “reasonable basis” to find the trial court’s behavior appropriate, appellate counsel cannot

be blamed for having failed to raise this issue on direct appeal. See United States v. Nyhuis, 211 F.3d

1340, 1344 (11th Cir. 2000) (“Appellate counsel is not ineffective for failing to raise claims reasonably

considered to be without merit.” (cleaned up)). We therefore DENY Ground Three.8

D. Ground Four

Ground Four is Pierre’s second appellate-counsel claim. Here, Pierre contends that appellate

counsel should have “argued on direct appeal that the prosecutor’s improper arguments and

misconduct rose to the level of fundamental error.” Petition at 6. Under Florida law, an error is

fundamental when it “reaches down into the validity of the trial itself to the extent that a verdict of

guilty could not have been obtained without the assistance of the alleged error.” Pinkney, 876 F.3d at

1297 (quoting Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996)). Unfortunately for Pierre, his Petition

does not “identify what comments in specific [sic] should have been raised on appeal. For this reason,

Petitioner fails to demonstrate error or prejudice.” Response at 23; see also Chavez v. Sec’y Fla. Dep’t of

Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (“With a typically heavy caseload and always limited

resources, a district court cannot be expected to do a petitioner’s work for him. . . . ‘[J]udges are not

like pigs, hunting for truffles buried in briefs.’” (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th

8 In his Reply, Pierre claims that the Respondent “left out the most important portion of the

argument where the trial judge told Mr. Sylvia to say that the vehicle the Petitioner was driving was a

Toyota Corolla instead of a Toyota Camry.” Reply at 7. Of course, it was Pierre himself who caused

this “mistake” since, in Ground Three, he only complains about “the lower court improperly

questioning Petitioner”—not Mr. Sylvia. Petition at 5 (emphasis added). And we won’t consider a new

argument a party has raised for the first time only in reply. See In re Egidi, 571 F.3d 1156, 1163 (11th

Cir. 2009) (“Arguments not fully presented in a party’s initial brief or raised for the first time in the

reply brief are deemed waived.”).

Waiver aside, Pierre’s argument is meritless. In the comment Pierre is now challenging—“[The

Court:] You need to say it was the Corolla”—the trial judge was unmistakably talking to the

prosecutor, not to Mr. Sylvia. See Trial Tr. [ECF No. 10-1] at 619. In doing so, the judge was simply

clarifying that the prosecutor was referring to a Toyota Corolla instead of a Toyota Camry. See ibid.

(“The Court: I think you misspoke. You said it was the Toyota— Mr. Newman: Right. The Court:

You need to say it was the Corolla. Mr. Newman: Correct.”). He was, therefore, simply clarifying an

inadvertent misstatement by the lawyer—and there’s nothing wrong with that. See J.F., 718 So. 2d at

252 (“[I]t is permissible for a trial judge to ask questions deemed necessary to clear up uncertainties as

to issues in cases that appear to require it[.]”).

Cir. 1991))). Without any specific allegations about what the prosecutor did wrong, we cannot say that

the Fourth DCA lacked a “reasonable basis” to deny this claim. Tarleton, 5 F.4th at 1291.

We note, however, that it would have been reasonable for the Fourth DCA to conclude that

nothing the prosecutor said during closing argument would’ve amounted to “fundamental” error under

Florida law. That’s because the Fourth DCA already found that there was overwhelming evidence of

Pierre’s guilt, “as the jury could have found Pierre guilty based on the eyewitness testimony of his son and ex-

wife alone.” Pierre, 246 So. 3d at 548 (emphasis added); see also Kilgore, 831 So. 2d at 898 (reiterating that

an error is only “fundamental” when “a verdict of guilty could not have been obtained without the assistance

of the alleged error.” (emphasis added)). Pierre never challenges this critical (and dispositive) aspect

of the Fourth DCA’s decision, see generally Petition; Reply—which is a second independent reason to

deny this claim.

We now add a third reason: Having reviewed the transcript, we agree with the Fourth DCA

that the testimony of these two witnesses was, standing alone, sufficient to secure a conviction. See,

e.g., Trial Tr. [ECF No. 10-1] at 288 (“[Marie Pierre]: Yes. He was angry about the child support. . . .

He told me (speaking in Creole). Q: What does that mean in English? A: That means in English who

will live, we’ll see. Q: Did you take that as a threat to injure or kill you? A: Yes. It’s a threat.”); id. at

295 (“Q: Did you know that it was Joseph Pierre immediately? [Marie Pierre]: Yes. I called his name.

I saw him by my side and I said Joseph is shooting me. . . . I did know it was him because we’ve been

together for the past thirty years[.]”); id. at 471–72 (“Q: When did you identify him in your mind? How

soon after that? . . . [Pierre’s Son]: He seen me running after him. He turned around and I seen the ski

mask, but I could still see his face. Like he had a ski mask, but somehow it got loose and I could see

just up and I seen him.”).9 Ground Four is DENIED.

9 Naturally, this “error” would also be harmless under Brecht. An error can’t “substantially influence

the jury’s verdict” when there’s other overwhelming evidence to support that verdict. Brecht, 507 U.S.

at 639 (cleaned up).

E. Grounds Five and Six

In Ground Five, Pierre says that his trial counsel was ineffective for failing to argue that “the

probative value of the admission of a multi colored ski mask was outweighed by the danger of unfair

prejudice[.]” Petition at 7. In Ground Six, he claims that trial counsel should have “renew[ed] his

objection to the [trial court] permitting [Mr. Sylvia] to testify outside his area of expertise[.]” Id. at 8.

The state postconviction court adopted the State’s Postconviction Response, see Order Denying

Postconviction Motion [ECF No. 9-1] at 193, which had treated these two claims together, reasoning

that “these issues were both addressed by the [Fourth DCA] in a written opinion”—albeit in the

context of reviewing the trial court’s ruling under a fundamental-error standard of review. State’s

Postconviction Response [ECF No. 9-1] at 186; see also Pierre, 246 So. 3d at 546 (“[Pierre] argues that

the trial court erred in admitting a multi-colored ski mask that was not used in the crime and by

permitting an expert witness to testify to an area outside of his expertise. As a result of waiver, we find

no reversible error.”). Relying on state law, the state postconviction court determined that the Fourth

DCA’s opinion precluded Pierre from showing that counsel’s errors prejudiced him under Strickland.

See State’s Postconviction Response [ECF No. 9-1] at 188–89 (“Likewise, the record conclusively

refutes the defendant’s claim of prejudice as there was no reasonable probability based on the evidence

at trial, including the testimony of the victim and the victim’s son, the results of the trial would have

differed but for counsel’s alleged deficiency.”). The Respondent adopts the state postconviction

court’s reasoning and urges us to do the same. See Response at 25 (“Because the alleged errors did not

amount to fundamental error, they cannot result in Strickland prejudice and Petitioner’s claims must

fail.”).

And we agree that Florida law forecloses Pierre’s claims in Grounds Five and Six. Florida law

is clear that a habeas petitioner cannot show Strickland prejudice once his fundamental-error claim

(raised on direct appeal) has been rejected. See Chandler v. State, 848 So. 2d 1031, 1046 (Fla. 2003)

(“Because Chandler could not show the comments were fundamental error on direct appeal, he

likewise cannot show that trial counsel’s failure to object to the comments resulted in prejudice

sufficient to undermine the outcome of the case under the prejudice prong of the Strickland test.”).

And we’re not the first to interpret Florida law this way. As the Eleventh Circuit has explained, “[if]

the Florida court has already determined . . . that the error was not fundamental error, [a federal court]

must defer to the ‘Florida court’s underlying determination of state law’” and find that the habeas

petitioner “cannot show ineffective assistance under Strickland.” Pinkney, 876 F.3d at 1297–98.

In his Reply, Pierre challenges the Fourth DCA’s fundamental-error finding. See Reply at 9.

Again, however, we won’t consider arguments Pierre makes only in reply. In re Egidi, 571 F.3d at 1163.

In any event, we cannot second-guess the Fourth DCA’s fundamental-error determination because

that’s a question of state law. See Pinkney, 876 F.3d at 1299 (“[T]he fundamental error question is an

issue of state law, and state law is what the state courts say it is. As the Supreme Court and this Court

have repeatedly acknowledged, it is not the federal court’s role to examine the propriety of a state

court’s determination of state law.” (cleaned up)). Grounds Five and Six are therefore DENIED.

EVIDENTIARY HEARING

We won’t hold an evidentiary hearing in this case. “[W]hen the state-court record ‘precludes

habeas relief’ under the limitations of § 2254(d), a district court is ‘not required to hold an evidentiary

hearing.’” Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (quoting Schriro v. Landrigan, 550 U.S. 465, 474

(2007)). We resolved all of Pierre’s claims on the merits under § 2254(d). And, since we have the

benefit of a full trial record, we don’t think we’d benefit from any further factual development. See

Williams, 529 U.S. at 444 (“The Court of Appeals rejected this claim on the merits under § 2254(d)(1),

so itis unnecessary to reach the question whether § 2254(e)(2) would permit [or restrict] a hearing on

the claim.”).

CERTIFICATE OF APPEALABILITY

A Certificate of Appealability (“COA”) is appropriate only when the movant makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To deserve a COA,

therefore, the movant must show that “reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a

district court has disposed of claims . . . on procedural grounds, a COA will be granted only if the

court concludes that ‘jurists of reason’ would find it debatable both ‘whether the petition states a valid

claim of the denial of a constitutional right’ and ‘whether the district court was correct in its procedural

ruling.” Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001) (quoting Franklin v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000)). We don’t think reasonable jurists would find our resolution of Pierre’s

constitutional claims debatable or wrong. We thus DENY any request for a COA.

kK

Having carefully reviewed the record and the governing law, we hereby ORDER AND

ADJUDGE that the Petition is DENIED, that a COA is DENIED, that any request for an

evidentiary hearing is DENIED, that all deadlines are TERMINATED, and that any pending

motions are DENIED as moot. ‘The Clerk of Court shall CLOSE this case.

DONE AND ORDERED itn Fort Lauderdale, Or August 2022.

ROYK.ALTMAN ———™

UNITED STATES DISTRICT JUDGE

cc: Joseph Pierre, pro se

counsel of record

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